4. What Is Vulnerability in Criminal Justice?

Evidence legislation generally treats children and persons with cognitive impairment as having inherent vulnerabilities.¹ While the definition of a ‘child’ is contextual,² arguably, in accordance with the Convention on the Rights of the Child (Royal Commission, 2023), all individuals under the age of 18 are vulnerable. ‘Cognitive impairment’ commonly includes a range of conditions, for instance, in New South Wales (NSW), cognitive impairment includes an intellectual disability, developmental disorder including autism spectrum disorder, a neurological disorder, dementia, a severe mental illness or a brain injury.³ Meanwhile in Victoria (Vic), it includes ‘impairment because of mental illness, intellectual disability, dementia or brain injury’.⁴ Tasmanian (Tas) legislation has eschewed the ‘vulnerable person’ terminology in favour of ‘people with communication needs’ on the basis that the latter is more expansive and covers communication needs arising from multiple factors (TLRI, 2018).⁵ Similarly in the Australian Capital Territory (ACT), witness ‘communication difficulties’, for example, a mental or physical disability that impedes speech, are recognised as disabilities.

Beyond children and individuals with cognitive impairments, vulnerable witness definitions encompass factors that may render individuals vulnerable when giving evidence. For example, South Australia (SA) and Northern Territory (NT) legislation includes an alleged victim of violence, threats of violence or retribution, complainants in sexual offences or domestic violence offences and a witness that the court considers to be vulnerable.⁶ In the NT, a wide array of factors may be considered in assessing vulnerability and the court may have regard to any relevant condition or characteristic of the witness, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity, understanding and personality, mental and physical disability, and the relationship between the witness and defendant.⁷

This is also the case with ‘special witness’ provisions. A person may be declared a special witness in Western Australia (WA) (see also Queensland⁸) if they are unlikely to be able to give evidence satisfactorily due to a range of other vulnerabilities: intellectual, mental or physical disability, or the person is likely to suffer severe emotional trauma by reason of age or cultural background or relationship to a party or nature of the subject matter.⁹ There are also ‘prescribed witnesses’, for instance, in the ACT this refers to a child complainant in a sexual offence proceeding, or a child in a serious violent offence proceeding involving death.¹⁰ In effect, this legislation creates a presumption that such prescribed witnesses are inherently vulnerable necessitating, as we will see in the following section, the appointment of an intermediary.¹¹

Most vulnerable person provisions only apply to witnesses, leading to the ‘unequal treatment of vulnerable defendants’ (Owusu-Bempah, 2020, p. 1; see also Dehaghani, 2020; Fairclough, 2017; Fairclough & Greenwood, 2023; Fairclough et al., 2023; Hughes et al., 2022; Jacobson & Cooper, 2020; O’Loughlin et al., 2024; Taggart, 2024). Yet, as Giuffrida and Mackay (2021, p. 503) argue, ‘many adult defendants will share characteristics of [vulnerable] witnesses—the same characteristics that have led to witnesses being provided with special assistance’. This approach is typical around the world and possibly difficult to reconcile with legal principles regarding the accused’s right to a fair trial and effective participation.

The vulnerabilities of suspects or defendants may be relevant in the contexts of initial police interactions and bail hearings (Hughes et al., 2022).¹² Regarding police detention and investigation, ‘vulnerable persons’ include children, people with impaired intellectual or physical functioning, Aboriginal and Torres Strait Islander peoples and people from non-English-speaking backgrounds.¹³ Legislation also recognises the vulnerability of children in police custody or when being questioned by people in authority.¹⁴ Regarding court procedure and evidence legislation, the accused may fall within the definition of vulnerable person in limited circumstances.¹⁵ Such legislative recognition of a vulnerable accused may have repercussions in their competence to give evidence¹⁶ and may enable potential support. Of course, a threshold consideration regarding vulnerable accused persons is whether they have capacity to be tried, and provisions concerning fitness to stand trial, as well as the impairment defence, involve assessment of specific vulnerabilities. For example, forensic legislation provides that when a fitness inquiry is held, the court must consider ‘whether the trial process can be modified, or assistance provided, to facilitate the [accused’s] understanding and effective participation in the trial’.¹⁷

Finally, the vulnerability of an offender might be relevant at sentencing.¹⁸ However, O’Loughlin et al. (2024, p. 8) argue that taking ‘vulnerability into account at the sentencing stage is insufficient to palliate the hardships imposed by criminal investigation, prosecution and conviction’. Scholarship has identified how the vulnerabilities of defendants and offenders may be associated with poorer justice outcomes (Dunn et al., 2008; Hughes et al., 2022; Rice & Skinns, 2021; Tudor-Owen et al., 2023).

In summary, Australian jurisdictions have various legally derived understandings of vulnerability. At law, there are several factors considered in defining a person who is inherently vulnerable or who might become vulnerable before the court. Vulnerabilities are recognised as arising from individual characteristics, relationships between parties, the nature of the alleged offending and the adversarial trial itself. Clearly age, particularly youth, and significant impairments are universally accepted as indicating the need for support or alternative arrangements. In the next section, we will see how this identification process unlocks special or protective measures in criminal procedure.

Caselaw regarding vulnerable witnesses draws on legislative understandings of vulnerability and demonstrates how remote communication technologies are employed to mitigate vulnerabilities. This is primarily by way of pre-recorded interviews for evidence-in-chief and/or the use of remote witness facilities and CCTV, especially for cross-examination. There are clear benefits afforded in vulnerable witnesses being remote from the accused and in minimising re-traumatisation. For instance, in QX,³⁴ the child complainant’s suicidality was triggered by the ongoing court proceedings. Adversarial criminal proceedings undoubtedly take a toll, so AVL and associated measures can support vulnerable witnesses to participate and give their best evidence. Content analysis of caselaw reveals many beneficial uses of AVL, including remote Victim Impact Statements.³⁵ Caselaw recognises the need for clear directions to juries regarding remote appearances,³⁶ while cautioning against extending the anodyne directions.³⁷

Conversely, caselaw highlights quality issues regarding AVL³⁸ and pre-recorded evidence. For example, during a recorded police interview of a child complainant, the camera slipped and only the top of the complainant’s head was visible, undermining the simultaneity of audio and visual, and rendering the recording inadmissible.³⁹ In another recorded police interview of a child complainant, while the child was mostly visible, the audio component was deficient with sections inaudible or indecipherable, again rendering the recording inadmissible.⁴⁰ In a third case, the entirety of the child complainant’s hand movements was not always visible as she gestured below the view of the camera. Nevertheless, the recording was accepted as an admissible audiovisual record.⁴¹ While recorded statements to police are now routine as evidence in court, one case observed that the use of police body worn cameras for the purpose of capturing the young complainant’s evidence was ‘entirely inappropriate’ especially given that it was not possible to see the child’s facial expressions, there was poor audio quality and sometimes the camera captured the floor instead of what the child was indicating.⁴²

Other issues have been raised regarding special measures. For instance, in Smith, the child complainant gave audiovisual recorded evidence-in-chief in a special hearing. While the recording itself wasn’t controversial, there had been a private introductory meeting, as recommended by the intermediary, the day before the special hearing between the judge, child complainant and counsel—but not the accused. The accused did not have the opportunity to watch the meeting by closed videolink and the meeting was not recorded. The Court of Appeal held that this non-public meeting with a vulnerable and key prosecution witness represented a fundamental irregularity and was ‘anathema to the principle of open justice’.⁴³ However, on appeal to the High Court of Australia, it was found that, while there was a risk of an irregularity, no fundamental irregularity in fact occurred such as to constitute a serious departure from accepted trial processes.⁴⁴ This issue has also come before English courts.⁴⁵

Some downsides of vulnerable witnesses appearing by AVL is that their comparative size might not be apparent.⁴⁶ Additionally, evidence by AVL from a complainant whose first language is not English and without an interpreter can cause problems with audibility in the courtroom and court transcription.⁴⁷

Caselaw records the vulnerabilities of complainants in family, domestic and intimate partner violence cases and their beneficial use of AVL. For example, in Gee,⁴⁸ the complainant had been declared a special witness given her ability to understand and respond coherently would be adversely impacted by giving evidence in the presence of the accused. The trial judge was satisfied that, had she been forced to give evidence in the ‘usual way’, she would not only be ‘likely to suffer severe emotional trauma, but is also likely to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily’. As a special witness, she was able to give her evidence remotely by way of a special hearing including pre-recorded evidence by AVL. On appeal to the Court of Criminal Appeal (Tas), the appellant argued that such measures led to forensic disadvantage and unfairness. In dismissing the appeal, the Court held that the legislative intent made it clear that primacy is to be given to reducing courtroom trauma for special witnesses.

This section builds on my earlier scholarship that distils caselaw regarding the communication needs of remote vulnerable defendants who are fit to plead but may require support, especially if they are giving evidence. McKay (2022) focuses on caselaw concerning remote psychiatric/psychological clinical assessments of vulnerable people-in-prison. There I identify benefits concerning convenience and enhanced access to psychiatric/psychological assessments. Conversely, some judgements are damning of remote evaluations and their perceived lack of rigour, reliability and utility: an ‘imperfect medium’⁴⁹ for the fulsome assessment of vulnerable individuals.⁵⁰ McKay and Macintosh (2023) analyses caselaw regarding vulnerable individuals seeking access to justice from prison. Cases reveal the advantages of AVL over prison-court escort across vast distances.⁵¹ However, several cases comment on the lack of suitable technological infrastructure to support pre-trial and pre-appeal preparation, especially for people with vulnerabilities,⁵² and unrepresented individuals.⁵³ Access to legal representation can be compromised for vulnerable defendants on remand when the only option is AVL.⁵⁴ Other cases reveal the impacts of AVL on effective participation and comprehension. Intellectual disability, cognitive functioning and difficulties with regulating behaviour are identified as vulnerabilities that inhibit a defendant’s capacity to participate in and understand criminal proceedings. In Honeysett, because the accused had a cognitive impairment and distractibility, it was determined that his engagement would be better in the physical courtroom than via AVL, and it gave him the opportunity for a support person.⁵⁵ On the other hand, there are several cases where AVL beneficially assisted vulnerable people to participate in, understand and cope with proceedings.⁵⁶ Since publishing McKay and Macintosh (2023), other cases have dealt with situations where the accused is unfit to be tried and so unwell that they cannot even attend their mental health/cognitive impairment special hearing, in-person or by AVL.⁵⁷ In White, the remote offender, a highly institutionalised person with significant cognitive impairments, had difficulties remaining awake and was allowed to leave the prison AVL room.⁵⁸

Caselaw reveals a range of technological contexts that can impact vulnerable defendants due to their age. Stringent requirements regarding interviewing child suspects, including the recording of admissions by police body worn cameras,⁵⁹ or Electronically Recorded Interview,⁶⁰ are imposed in relation to child defendants due to their lack of maturity and subordinate position to police. Yet, very young Aboriginal children appear by AVL for bail hearings.⁶¹ Additionally, elderly people may be identified as vulnerable and, for an 83-year-old with dementia, it was best for them to watch proceedings via AVL.⁶²

Defendants may be vulnerable due to adverse life experiences and a childhood of deprivation, activating the Bugmy principles that recognise these disadvantages as mitigating factors at sentencing in reducing moral culpability.⁶³ Cases reveal the systemic failures to intervene at critical stages of someone’s life, leading to someone becoming ‘an abandoned and vulnerable Aboriginal offender’ who might have benefited from alternatives such as the specialised Walama Court.⁶⁴ For instance, the Indigenous applicant in Knight had many vulnerabilities stemming from childhood dysfunction and deprivation. The Court allowed him to appear by AVL for sentencing although it was observed that, had proceedings been conducted through the Walama Court, there might have been a cultural imperative for the applicant to appear in-person, on country, according to the deceased’s family’s wishes.⁶⁵ Extreme social disadvantage is also relevant to non-Indigenous people and, commonly, cases reveal an offender’s traumatic background at sentencing. There can be a raft of issues flowing from deprivation.⁶⁶ Factors include having experienced significant disadvantage, violence and abuse during childhood and throughout life, limited education and employment, psychiatric or psychotic disorders, illicit substance use and major depression, amongst many other issues. The imperative to identify defendants’ vulnerabilities is made apparent when we consider deaths in custody.⁶⁷ Vulnerabilities before the courts are amplified if the person is self-represented and appearing in their legal matter from prison by AVL.⁶⁸ As mentioned above, there are few supports, technological or otherwise, for vulnerable defendants and only a few jurisdictions make provision for intermediary assistance.⁶⁹